1980 PLP 362 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑Leave to appeal is sought, from the judgment dated 12th September, 1979 (and review order dated 16th October, 1979 of the High Court of Baluchistan) ; whereby petitioner's writ petition arising out of a tribal dispute over a tract of land known as `Narkhezai Jungle', was dismissed. The dispute is about a century old. All the concerned parties accused each other of encroachment over the disputed area by constructing pucca structures; while the land was for the common use, as grazing pasture. The details of litigation several times, given in the petition need not be recounted. It appears, there from that the proceedings conducted, in accordance with the law prevailing for the time being, always resulted in the same conclusion that, as claimed by the petitioner, none of the parties had any exclusive right in the pasture. A similar dispute raised by the petitioner in more recent years ended in a jirga award by a properly constituted jirga. The award was accepted by the Deputy Commissioner and Political Agent who passed an order accordingly on 22nd March, 1971. The main features of the award/order were (a) the earlier decisions were re‑affirmed that pucca structures (minajats with mud roofs) were not to be' constructed within the area in dispute ; (b) both the sides including the petitioner who had filed the complaint this time had contravened the above rule/decision ; (c) both the sides were required to convert the said structures into temporary ones‑jhugis, three months time was allowed for the removal/conversion ; (d) construction in future must conform to the previous decisions ;_ (e) one of the parties (respondents) had not accepted the award which was by majority of 4 : 1, however, it was made the rule after the consideration of their objections ; (f) the copies of the order were to be sent to the field officers for compliance/execution. It appears that during the implementation of the decision the parties again differed on the mode of execution. However, they appeared before the Deputy Commissioner on 16th June, 1973 and made a joint statement ; that in order to resolve this difference a new detailed plan be prepared by the Revenue Officer on the basis of the previous decisions and the plan ; that the boundaries should be demarcated by fixing pucca Burgis for purpose of locating the structures which were to be modified or removed ; and that new plan should be prepared in the presence and under the instructions of the jirga members who had rendered the latest award. The Deputy Com missioner accepted the proposal and ordered accordingly adding that the new plan should be prepared by the Revenue Officer `in accordance with the rules' and that the costs of these operations would be borne by the State. When the Revenue Authorities wanted to prepare the new plan, the petitioner complained to the Deputy Commissioner that the proceed ings were going to be conducted in his and jirga members absence; on which, it was directed that the new plan must be prepared strictly in accordance with the previous orders. Ultimately, as it appears from joint report dated 1st March, 1978 of Assistant Political Agent and Assistant Commissioner that in the presence of the parties, revenue and other field staff and that the three living members of the jirga and in consultation with them and after measurements from `all four sides', a new plan was prepared which was signed by the jirga members. In fact the pucca Burgis were fixed in accordance with their directions. The joint report with the new plan was endorsed by the Deputy Commissioner in his order dated 18th March, 1978. He noted that the order dated 16th June, 1973 which was passed on the statement of parties had been complied with. Before any action could be taken on the basis of the delineation of the boundaries of the area concerned, the petitioner challenged the order of the Deputy Commissioner (dated 18th March; 1968) in a revision which was dismissed by an Additional Commissioner on 14th September, 1979. A writ petition was then filed in the High Court which was also dismissed. The petitioner also moved a review petition but without any success. It has been held by the High Court that the impugned orders do not amount to change of previous decisions and that the new map in fact is in the implementation of the previous decisions on the substance of the dispute which was prepared on the application of the petitioner, who challenged the same because the results do not suit him. Learned counsel has contended: that Baluchistan Civil Disputes (Shariat Application) Regulation, 1976 was enforced on 18th February, 1977, whereupon by virtue of section 7 of the Regulation the case stood automatically transferred to the Shariat forum‑the Deputy Commissioner and the Commissioner had no jurisdiction in the matter ; that if it is treated as only execution proceedings, even then the boundaries having been changed by the new map it should have been considered as a new case and transferred to the Shariat forum ; that the jirga members, three in number who joined and endorsed the measurements. and the plan did not constitute a proper jirga‑their number being less than four'; that the new plan was prepared in the absence of the petitioner which has prejudiced him. Section 7 of the Regulation applies to `suits' and `appeals'. The proceedings in question were miscellaneous in nature‑at best they could termed as execution proceedings. The provision was not attracted.' I any case the petitioner himself was throughout agitating the matter before the Deputy Commissioner. He filed the revision under the old law an pressed the same before the Additional Commissioner without any objection regarding jurisdiction. The High Court could, in these circumstances, even if there was any defect in this behalf in the proceedings, refuse relief on account of conduct of the petitioner. It was not a new case. The presence of living jirga members was secured to achieve the maximum acceptability of the execution proceedings. The same were being conducted in an old tribal dispute. Full jirga was not required. The petitioner did not object to the participation of three living jirga members at the proper time‑‑he rather accepted the procedure adopted by the field authorities, and raised the objection after he felt dissatisfied with the fair attitude of the jirga members. Two of them had earlier given verdict in his favour (in the main case). The new plan was prepared in accordance with the joint statement o parties (including the petitioner) made on 16th June, 1973. The petitioner was present on 1st March, 1978 when measurements were done. Pucca Burgis were fixed and final shape was given to the demarcation on the new plan. No law or principle has been violated nor the petitioner suffered any prejudice in this behalf on account of conduct of the authorities. This petition has no force. It is accordingly dismissed. Petition dismissed.